Podcast Summary: "Election Lawsuits"
Podcast: What Trump Can Teach Us About Con Law
Host: Roman Mars
Guest: Professor Elizabeth Joh
Episode: Election Lawsuits
Release Date: November 4, 2024
Episode Overview
This episode explores the growing prevalence and strategic significance of election lawsuits in US presidential elections, with a particular focus on legal challenges expected during and after the highly consequential 2024 general election. Roman Mars and Professor Elizabeth Joh examine historic and recent litigation, discuss changes in the law, and unpack the implications for American democracy. The episode also reflects on the Supreme Court’s evolving and sometimes troubling role in these disputes.
Key Discussion Points & Insights
1. The Legacy of Technical Standards and Voting Systems
[00:43 - 06:00]
- Historical Background: Prof. Joh introduces the National Institute of Standards and Technology (NIST) and its surprising role in the evolution of voting technology.
- Hanging Chads Origin Story: Recounts the infamous 2000 election’s “butterfly ballot” and “hanging chad” controversies, noting that NIST had warned about pre-scored punch cards years before—warnings that went unheeded.
- Quote:
"In the 2000 presidential election, these two decisions to ignore the 16 year old NIST report and the decision to offer a butterfly ballot meant that we didn't have a definite answer to who won the presidential election until December 12, 2000." – Prof. Elizabeth Joh [05:20]
- Bush v. Gore Precedent: The Supreme Court's intervention in that contest set a controversial precedent for federal court involvement in election outcomes.
2. Proliferation of Election Lawsuits Post-2020
[07:24 - 13:08]
- Shift Since 2000: Lawsuits are now a regular, even expected, part of presidential elections—especially after Trump’s failed litigation blitz post-2020.
- Three Major Categories of Lawsuits:
- Who is allowed to vote (targeting or attempting to disenfranchise certain groups, like overseas/military voters)
- How people are allowed to vote (rules around absentee and early voting)
- Which votes count (challenges to vote counting and certification)
- Recent Republican Legal Strategy: Repeated efforts—often unsuccessful—to challenge overseas military ballots or restrict absentee and early votes.
3. Examples of Contemporary Legal Battles
[09:15 - 12:57]
A. Who Can Vote: Targeting Overseas and Absentee Voters
- Republicans filed lawsuits in swing states (NC, MI, PA) to exclude overseas voters, generally dismissed by courts.
- Quote:
"The Michigan lawsuit was dismissed as what the state court judge called an 11th hour attempt to disenfranchise voters." – Prof. Joh [09:47]
B. How Votes Are Cast: The Absentee Ballot Wars
- Surge in absentee voting during the COVID-19 pandemic favored Democrats; led Republicans to challenge absentee processes.
- States like Wisconsin flipped Supreme Court control, changing the legality of ballot dropboxes from illegal (GOP majority, 2022) to legal (Democratic majority, 2023).
4. The Purpose and Power of "Zombie Lawsuits"
[12:57 - 16:07]
- Frivolous Yet Strategic: Many losing lawsuits serve a purpose—preserving an active case (“zombie lawsuits”) that can be revived post-election to cast doubt on results or allege fraud.
- Doctrine of Laches: A legal concept that dismisses cases brought too late—but if a lawsuit is filed just before the election, it "lingers" and can be exploited afterward.
- Quote:
"It is a legal strategy thinking that, well, maybe we can make claims in sort of the whirl and confusion of what might happen after election day." – Prof. Joh [14:24]
5. Recent Cases and Supreme Court Involvement
[16:07 - 28:09]
A. Ballot Counting & Certification Challenges
- Pennsylvania’s "Naked Ballots": Legal fights over disqualified absentee ballots missing a secondary envelope. State courts ordered provisional ballots counted, but Republicans appealed to the US Supreme Court to reverse those rulings seven days before the 2024 election.
- Certification Disputes: Efforts to block or delay local and state certification of results; possible escalation to Congressional certification on January 6, 2025.
B. The Electoral Count Reform Act of 2022
- Tightened most loopholes Trump’s team tried to exploit in 2020:
- States can only alter electoral results for catastrophic (force majeure) events.
- The Vice President's role in certification is now explicitly ceremonial.
- Raised the threshold for Congressional objections to state electors to one-fifth of both chambers.
- Set a hard December 11, 2024, deadline for state certification—but law is vague about consequences for missing the deadline.
C. The Virginia Voter Purge Case
[25:08 - 28:09]
- Virginia purged over 1,600 alleged noncitizens from voter rolls less than 90 days before the election, based on flawed DMV data.
- Federal and Appeals Courts Blocked the Purge: Found likely violation of federal law (NVRA).
- Supreme Court Overrules Without Opinion: The conservative majority allowed the purge days before the election, with no explanation provided.
- Quotes:
"We actually don't even know why the court decided this. There's no way of knowing why the court thinks it's okay to allow a state to remove registered voters, some of whom are eligible voters, just days before Election Day." – Prof. Joh [27:21]
"The reason why this is so troubling is because it shows us the Supreme Court's attitude... being pretty cavalier about stepping into elections and allowing a voter purge that doesn't seem to be allowed by federal law at all." – Prof. Joh [27:43]
6. The Supreme Court’s Eroding Legitimacy and the High Stakes
[28:09 - 32:39]
- The Impact of Frivolous Lawsuits: Even flawed lawsuits signal to Trump supporters that something is amiss, fanning misinformation and distrust—contributing to the tension and violence seen on January 6.
- Declining Transparency and Precedent: Roman and Prof. Joh discuss the Court’s tendency to issue impactful rulings without reasoning, and its decreasing concern for public legitimacy or established precedent.
- Quotes:
"It just doesn't seem like that's a huge concern [for the Supreme Court]... they used to have some kind of notion that you can't be capricious about your decision making and you have to give reasoned arguments... you just don't feel that anymore from the Supreme Court decisions." – Roman Mars [31:00]
"It makes it especially hard to think about how the court can say anything with finality in an election if they decide to step in right after in a way that is not decisive." – Prof. Joh [32:28]
7. Returning to Voting Technology and Public Confidence
[32:40 - 34:41]
- In 1976, NIST experts predicted high-tech voting—with voiceprint verification and instant tallies—but warned (and still warn) about persistent issues of public confidence in both technology and election administrators.
- Metaphor:
"An election is like the launch of a space rocket. It must work the first time." – Roy Saltman (as quoted by Prof. Joh) [33:45]
Notable Quotes & Memorable Moments
- "It is a legal strategy thinking that, well, maybe we can make claims in sort of the whirl and confusion of what might happen after election day." – Prof. Joh [14:24]
- "We actually don't even know why the court decided this. There's no way of knowing why the court thinks it's okay to allow a state to remove registered voters, some of whom are eligible voters, just days before Election Day." – Prof. Joh [27:21]
- "An election is like the launch of a space rocket. It must work the first time." – Roy Saltman (as quoted by Prof. Joh) [33:45]
Key Timestamps
- 00:43 – 06:00: The NIST, hanging chads, and the 2000 election
- 07:24 – 13:08: Modern lawsuit categories and Republican strategies
- 13:08 – 16:07: Zombie lawsuits and the doctrine of laches
- 16:07 – 19:47: Vote counting, certification, and the Supreme Court’s possible role
- 19:47 – 22:44: The Electoral Count Reform Act of 2022 and new rules
- 25:08 – 28:09: The Virginia voter purge Supreme Court intervention
- 28:09 – 32:39: Implications for confidence in the Court and US democracy
- 32:40 – 34:41: Reflections on voting technology and confidence
Conclusion
This episode sheds light on why so many lawsuits surround US elections, how many serve more as political signals than legal challenges, and why the Supreme Court’s actions—often unexplained—cast a troubling shadow over the coming results. As Prof. Joh says, should results be close or contested, “Trump is going to unleash a flood of lawsuits,” threatening public confidence and the orderly resolution of American presidential elections.
For further exploration or to listen: learnconlaw.com